State of Bihar Vs.
Upendra Narayan Singh & Ors. [2009] INSC 579 (20 March 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.1741 OF 2009 (Arising out of S.L.P. (C) 16871 of
2007) State of Bihar ... Appellant Versus Upendra Narayan Singh & others
... Respondents
G.S. SINGHVI, J.
1.
Leave
granted
2.
After
taking cognizance of the fact that large number of ad hoc appointments were
being made in different departments without complying with the relevant rules
and procedure, the Government of Bihar vide its Circular No.7260 dated
27.4.1979 which was followed by another Circular No.3001 dated 16.3.1982
imposed ban on such appointments. Notwithstanding this, ad hoc appointments
continued to be made in violation of the rules and relevant instructions. This
compelled the State Government to pass order dated 10.3.1985 for cancellation
of ad hoc appointments and for filling the vacancies in accordance with the
rules. After one year, the issue relating to large scale illegalities committed
in the making of ad hoc appointments was raised in the Bihar Legislative
Assembly and members expressed concern over such appointments. In the backdrop
of this development, Chief Secretary, Government of Bihar vide his letter dated
11.6.1986 made it clear to all the Secretaries to the Government, Heads of
Departments, Divisional Commissioners and District Magistrates that they will
be personally responsible for the compliance of the rules and instructions in
the making of ad hoc appointments.
It, however, appears
that the ban imposed by the State Government was relaxed qua Animal Husbandry
Department and vide letter dated 4.7.1987, Under Secretary to the Government
informed the Director, Animal Husbandry that for implementation of the schemes
being operated by the department, appointments may be made on Class IV posts by
committees comprising of Regional Director, Animal Husbandry as Chairman,
Regional Joint Director, Animal Husbandry/Assistant Director, Animal Husbandry
as Secretary and one officer belonging to Scheduled Castes/Scheduled Tribes.
3.
By
taking advantage of letter dated 4.7.1987, Dr. Darogi Razak, the then Regional
Director, Animal Husbandry, Gaya, made a number of appointments on Class III
and Class IV posts without issuing any advertisement or sending requisition to
the employment exchange and without making selection of any sort. The
respondents were also beneficiaries of the largess doled out by Dr. Darogi
Razak in violation of instructions issued by the Chief Secretary and the Animal
Husbandry Department. They were appointed as Class IV employees on 9.10.1991
(respondent no.1), 24.10.1991 (respondent no.2) and 27.10.1991 (respondent nos.
3, 4 and 5).
Copies of the orders
of appointment of the respondents have been placed on record along with affidavit
dated 8.9.2008 of Dr. Ram Narayan Singh, Joint Director (HQ), Animal Husbandry,
Animal Husbandry and Fisheries Resources Department, Bihar.
For the sake of
reference, the relevant extracts of English translation of order passed in the
case of respondent no.1 - Upendra Narayan Singh are reproduced below:
"OFFICE OF
REGIONAL DIRECTOR, ANIMAL HUSBANDRY, MAGADH RANGE, GAYA ORDER In exercising
the power given by letter no.5094 dated 04.07.1987 and letter no.3430 dated
14.12.1977 of Deputy Secretary, Department of Animal Husbandry and Cooperative,
the adhoc appointments of the following persons on the class IV posts in the
scale Rs.775-12-955-14-1025 are made.
Their services can be
terminated without any prior notice.
Health certificate
from Civil Surgeon will have to be produced at the time of joining.
No TA/DA is
admissible at the time of joining.
Sl.No. Name and
Address Post
1. Sri Upendra
Narayan Singh Class IV S/o Sri Awdhesh Singh Vill + P.O. Kunda Distt Aurangabad
Sd/- Regional Director Animal Husbandry Magadh Range, Gaya Memo no 1467 (CON)
Dated 09.10.1991 Copy to Serial no.1 for information."
4.
On
receipt of complaints that ad hoc appointments had been made in the department
for extraneous considerations, Secretary to the Government, Animal Husbandry
and Fisheries Department issued circular dated 28.10.1991 whereby instructions
contained in letter dated 4.7.1987 were superseded and it was directed that
such appointments should be made strictly in accordance with the instructions
issued by the Chief Secretary. However, no step appears to have been taken in
the matter of illegal/irregular appointments already made, till the issue of
letter dated 16.4.1996 by the Secretary of the department to the Director that
in view of the institution of criminal case against the then Regional Director,
Animal Husbandry, Gaya, payment of salary to those appointed by him should be
stopped.
5.
On
receipt of communication from the Secretary, Director, Animal Husbandry got
conducted an inquiry into the appointments made by the then Regional Director,
Animal Husbandry, Gaya. In that inquiry, it was found that about 5 dozen
appointments were made without sanctioned posts and without following the
procedure prescribed vide circular dated 4.7.1987. Thereafter, notices dated
3.5.2001 were issued to the respondents requiring them to show cause against
the proposed termination of their services. In their replies, the respondents
claimed that the Regional Director had appointed them after due selection and
that the enquiry got conducted by the Director, Animal Husbandry cannot be made
basis for terminating their services after a gap of almost 10 years. After
considering their replies, the competent authority passed orders dated
23.5.2001 terminating the services of the respondents, who challenged the same
by filing a petition under Article 226 of the Constitution of India, which was
registered as CWJC No. 7816 of 2001.
The respondents
pleaded that the action taken against them was vitiated due to violation of the
rules of natural justice and arbitrary exercise of power because the concerned
authority did not give them the effective opportunity of hearing and the
instruction contained in memorandum dated 16.4.1996 could not have been applied
to their case because they had been appointed prior to cut off date specified
therein i.e. 28.10.1991. The appellant herein contested the writ petition by
asserting that the services of the writ petitioners were terminated because
their initial appointments were illegal.
6.
The
learned Single Judge relied upon the order passed in CWJC No.5140 of 1998 and
quashed the termination of the respondents' services with a direction that they
be reinstated with consequential benefits. Letters Patent Appeal No.61 of 2007 filed
by the appellant was dismissed by the Division Bench on the ground that similar
appeals filed in the cases of Arun Kumar and others and Arjun Chaudhary had
already been dismissed. In the opinion of the Division Bench, a different view
could not be taken in the case of the respondents because that would give rise
to an anomalous situation.
7.
Learned
counsel for the appellant argued that the High Court committed serious error by
ordering reinstatement of the respondents ignoring that their initial
appointments were ex facie illegal inasmuch as the concerned authority did not
follow any procedure consistent with the doctrine of equality enshrined in
Articles 14 and 16 of the Constitution as also the instructions issued by the
Government for making ad hoc appointments. Learned counsel emphasized that even
while making ad hoc appointment, the competent authority is required to
advertise the posts or at least send requisition to the employment exchange and
make selection from amongst the eligible persons, but no such procedure was followed
by the then Regional Director, Animal Husbandry, Gaya, before appointing the
respondents. Shri Nagendra Rai, learned senior counsel appearing for the
respondents submitted that the directions given for reinstatement of his
clients may not be disturbed because other similarly situated persons have
already been reinstated pursuant to the directions given by the High Court. To
buttress this submission, the learned senior counsel invited the Court's
attention to the orders passed in CWJC No.13328/1992 - Rangosh Sharma and
others v. State of Bihar, CWJC No.15571/2001 - Arjun Choudhary v. State of
Bihar and others, CWJC No.6554/2000 - Birendra Kumar Singh v. State of Bihar
and others, LPA No.325/2000 - State of Bihar and others v. Arun Kumar and
others and LPA No. 47/2006 - State of Bihar and others v. Arjun Choudhary. Shri
Rai then referred to the averments contained in paragraph 4 of the
counter-affidavit to the Special Leave Petition to show that services of the
respondents were regularized in 1992 and argued that the concerned authority
illegally terminated their services by assuming that they were ad hoc
appointees.
8.
We
have given serious thought to the entire matter and also gone through the
statement furnished by learned counsel for the appellant during the course of
arguments. Equality of opportunity to all irrespective of their caste, colour,
creed, race, religion and place of birth which constitutes one of the core
values of the Universal Declaration of Human Rights also forms part of preamble
to the Constitution of India, which reads as under:- "WE, THE PEOPLE OF
INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social,
economic and political;
LIBERTY of thought,
expression, belief, faith and worship;
EQUALITY of status
and of opportunity;
and to promote among
them all;
FRATERNITY assuring
the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT
ASSEMBLY this twenty-sixth day of
November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
9.
For
achieving various goals set out in the preamble, framers of the Constitution
included a set of provisions in Part III with the title "Fundamental
Rights" and another set of provisions in Part IV with the title
"Directive Principles of State Policy". The provisions contained in
Part III of the Constitution by and large contain negative injunctions against
State's interference with the fundamental rights of individuals and group of
individuals and also provide for remedy against violation of such rights by
direct access to the highest Court of the country. Part IV enumerates State's
obligation to make policies and enact laws for ensuring that weaker segments
(have nots) of the society are provided with opportunities to come up to a
level where they can compete with others (haves).
10.
The
inclusion of a set of fundamental rights in India's Constitution had its
genesis in the forces that operated in the national struggle during British
rule. Some essential rights like personal freedom, protection of one's life and
limb and of one's good name, derived from the common law and the principles of
British jurisprudence, were well accepted and theoretically recognized by
various British enactments. By way of illustration, reference can be made to
Section 87 of the Charter Act of 1883 wherein it was laid down that no native
of the British India shall by reason only of his religion, place of birth,
descent, colour, or any of them, be disabled from holding any place, office or
employment under the Company. The substance of this provision was incorporated
in Section 96 of the Government of India Act, 1915.
In the Government of
India Act, 1935, the guarantee against discrimination was reiterated and given
extended meaning. However, in pre-independence period there was no chapter of
fundamental rights of a justiciable nature and even the safeguards provided
under various statutes could be taken away by the British Parliament or a
legislative authority in India (The Framing of India's Constitution, Vol. II,
edited by B. Shiva Rao).
11.
The
Constituent Assembly which prepared draft of the Constitution extensively
debated on the necessity of having a separate chapter relating to fundamental
rights. The principle of guaranteeing to every person equality before the law
and the equal protection of the laws, was first included in the drafts
submitted to the Sub-Committee on Fundamental Rights by Shri K.M. Munshi and
Dr. B.R. Ambedkar. After discussing the matter and considering the suggestions
made by Shri B.N. Rau, Alladi Krishnaswami Ayyar, Shri K.M. Munshi and others,
the final draft of Article 14 was adopted, which now reads as under:
"The State shall
not deny to any person equality before the law or the equal protection of the
laws within the territory of India."
The principle of
non-discrimination on grounds of religion, race, colour, caste or language in
the matter of public employment was contained in the drafts submitted by Shri
K.M. Munshi and Dr. B.R. Ambedkar. Shri K.T. Shah and Shri Harnam Singh also
incorporated this basic principle in clauses 2 and 8 of their respective
drafts. When the Sub-Committee on Fundamental Rights discussed the subject,
Shri K.T. Shah pressed his view that the Constitution should guarantee non-
discrimination, not only in "public employment" but also in
"employment in any enterprise aided or assisted by the State".
However, his suggestion was not accepted by the Sub-Committee. The issue was
then debated in the context of demand for incorporation of a clause enabling
the State to provide for reservation in favour of backward classes, etc. and
ultimately the draft was adopted (The Framing of India's Constitution, Vol. II,
edited by B. Shiva Rao). Clauses (4A) and (4B) were added to Article 16 by the
Constitution (77th Amendment) Act, 1995. Article 16 in its present form reads
as under:
"16. Equality of
opportunity in matters of public employment. - (1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
(2) No citizen shall,
on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State. (3) Nothing in this
article shall prevent Parliament from making any law prescribing, in regard to
a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union
territory, any requirement as to residence within that State or Union territory
prior to such employment or appointment.
(4) Nothing in this
article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under
the State.
(4A) Nothing in this
article shall prevent the State from making any provision for reservation in
matters of promotion, with consequential seniority, to any class or classes of
posts in the services under the State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State, are not adequately
represented in the services under the State.
(4B) Nothing in this
article shall prevent the State from considering any unfilled vacancies of a
year which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of
vacancies shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per cent
reservation on total number of that year.
(5) Nothing in this
article shall affect the operation of any law which provides that the incumbent
of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person
professing a particular religion or belonging to a particular
denomination."
12.
In
E.P. Royappa v. State of Tamil Nadu and others [(1974) 4 SCC 3], the Constitution
Bench negatived the appellant's challenge to his transfer from the post of
Chief Secretary of the State to that of Officer on Special Duty. P.N. Bhagwati,
J. (as His Lordship then was) speaking for himself, Y.V. Chandrachud and V.R.
Krishna Iyer, JJ. considered the ambit and reach of Articles 14 and 16 and
observed :
"Article 14 is
the genus while Article 16 is one of its species.
Article 14 declares
that the State shall not deny any person equality before the law or equal
protection of the laws within the territory of India. Article 16 gives effect
to the doctrine of equality in all matters relating to public employment.
Article 16 embodies the fundamental guarantee that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State. No citizen shall be ineligible for or
discriminated against irrespective of any employment or office under the State
on the grounds only of religion, race, caste, sex, descent, place of birth, residence
or any of them. Though, enacted as a distinct and independent fundamental right
because of its great importance as a principle ensuring equality of opportunity
in public employment which is so vital to the building up of the new classless
egalitarian society envisaged in the Constitution. The basic principle which,
therefore, informs both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of Bose. J., "a way of
life", and it must not be subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to truncate its all-embracing scope
and meaning, for to do so would be to violate its activist magnitude. Equality
is a dynamic concept with many aspects and dimensions and it cannot be
"cribbed, cabined and confined"
within traditional
and doctrinaire limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and constitutional
law and is therefore violative of Article 14, and if it effects any matter
relating to public employment, it is also violative of Article 16.
Articles 14 and 16
strike at arbitrariness in State action and ensure fairness and equality of treatment."
13.
The
equality clause enshrined in Article 16 mandates that every appointment to
public posts or office should be made by open advertisement so as to enable all
eligible persons to compete for selection on merit - Umesh Kumar Nagpal v.
State of Haryana and others [(1994) 4 SCC 138], Union Public Service Commission
v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482], State of Manipur and others
v. Y. Token Singh and others [(2007) 5 SCC 65] and Commissioner, Municipal Corporation,
Hyderabad and others v. P. Mary Manoranjani and another [(2008) 2 SCC 758].
Although, the Courts have carved out some exceptions to this rule, for example,
compassionate appointment of the dependent of deceased employees, for the
purpose of this case it is not necessary to elaborate that aspect.
14.
In
Girish Jayanti Lal Vaghela's case, this Court, while reversing an order passed
by the Central Administrative Tribunal which had directed the Union Public
Service Commission to relax the age requirement in the respondent's case,
elucidated the meaning of the expression "equality of opportunity for all
citizens in matters relating to public employment" in the following words:
"Article 16
which finds place in Part III of the Constitution relating to fundamental
rights provides that there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
The main object of Article 16 is to create a constitutional right to equality
of opportunity and employment in public offices. The words `employment' or
`appointment' cover not merely the initial appointment but also other
attributes of service like promotion and age of superannuation, etc. The
appointment to any post under the State can only be made after a proper
advertisement has been made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially constituted committee
whose members are fair and impartial through a written examination or interview
or some other rational criteria for judging the inter se merit of candidates
who have applied in response to the advertisement made. A regular appointment
to a post under the State or Union cannot be made without issuing advertisement
in the prescribed manner which may in some cases include inviting applications
from the employment exchange where eligible candidates get their names
registered. Any regular appointment made on a post under the State or Union
without issuing advertisement inviting applications from eligible candidates
and without holding a proper selection where all eligible candidates get a fair
chance to compete would violate the guarantee enshrined under Article 16 of the
Constitution."
15.
For
ensuring that equality of opportunity in matters relating to employment becomes
a reality for all, Parliament enacted the Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959 (for short `the 1959 Act'). Section 4 of
that Act casts a duty on the employer in every establishment in public sector
in the State or a part thereof to notify every vacancy to the employment
exchange before filling up the same. In Union of India and others v. N.
Hargopal and others [(1987) 3 SCC 308], a two-Judge Bench of this Court
considered the question whether persons not sponsored by the employment exchange
could be appointed to the existing vacancies. The High Court of Andhra Pradesh
had ruled that the provisions of 1959 Act are not applicable to Government
establishment; that the Act does not cast duty either on the public sector
establishment or on the private sector establishment to make the appointments
from among candidates sponsored by the employment exchanges only, and that
instructions issued by the Government of India that candidates sponsored by the
employment exchanges alone should be appointed are contrary to Articles 14 and
16. This Court referred to Sections 3 and 4 of the 1959 Act, adverted to the
reasons enumerated in the counter-affidavit filed on behalf of the Union of
India before the High Court to justify the appointments only from among the
candidates sponsored by the employment exchange and held:
"......... The
object of recruitment to any service or post is to secure the most suitable
person who answers the demands of the requirements of the job. In the case of
public employment, it is necessary to eliminate arbitrariness and favouritism
and introduce uniformity of standards and orderliness in the matter of
employment. There has to be an element of procedural fairness in recruitment.
If a public employer chooses to receive applications for employment where and
when he pleases, and chooses to make appointments as he likes, a grave element
of arbitrariness is certainly introduced. This must necessarily be avoided if
Articles 14 and 16 have to be given any meaning. We, therefore, consider that
insistence on recruitment through Employment Exchanges advances rather than
restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The
submission that Employment Exchanges do not reach everywhere applies equally to
whatever method of advertising vacancies is adopted. Advertisement in the daily
press, for example, is also equally ineffective as it does not reach everyone
desiring employment. In the absence of a better method of recruitment, we think
that any restriction that employment in government departments should be
through the medium of employment exchanges does not offend Articles 14 and 16
of the Constitution."
In Excise
Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao
and others [(1996) 6 SCC 216], a three-Judge Bench while reiterating that the
requisitioning authority/establishment must send intimation to the employment
exchange and the latter should sponsor the names of candidates, observed:
".... It is
common knowledge that many a candidate is unable to have the names sponsored,
though their names are either registered or are waiting to be registered in the
employment exchange, with the result that the choice of selection is restricted
to only such of the candidates whose names come to be sponsored by the
employment exchange. Under these circumstances, many a deserving candidate is
deprived of the right to be considered for appointment to a post under the
State. Better view appears to be that it should be mandatory for the
requisitioning authority/establishment to intimate the employment exchange, and
employment exchange should sponsor the names of the candidates to the
requisitioning departments for selection strictly according to seniority and
reservation, as per requisition. In addition, the appropriate department or
undertaking or establishment should call for the names by publication in the
newspapers having wider circulation and also display on their office notice
boards or announce on radio, television and employment news bulletins; and then
consider the cases of all the candidates who have applied. If this procedure is
adopted, fair play would be subserved. The equality of opportunity in the
matter of employment would be available to all eligible candidates."
The same principle
was reiterated in Arun Kumar Nayak v. Union of India and others [(2006) 8 SCC
111] in the following words:
"This Court in
Visweshwara Rao, therefore, held that intimation to the employment exchange
about the vacancy and candidates sponsored from the employment exchange is
mandatory. This Court also held that in addition and consistent with the
principle of fair play, justice and equal opportunity, the appropriate
department or establishment should also call for the names by publication in
the newspapers having wider circulation, announcement on radio, television and
employment news bulletins and consider all the candidates who have applied.
This view was taken to afford equal opportunity to all the eligible candidates
in the matter of employment. The rationale behind such direction is also
consistent with the sound public policy that wider the opportunity of the
notice of vacancy by wider publication in the newspapers, radio, television and
employment news bulletin, the better candidates with better qualifications are
attracted, so that adequate choices are made available and the best candidates
would be selected and appointed to subserve the public interest better."
16.
The
ratio of the above noted three judgments is that in terms of Section 4 of the
1959 Act, every public employer is duty bound to notify the vacancies to the
concerned employment exchange so as to enable it to sponsor the names of
eligible candidates and also advertise the same in the newspapers having wider
circulation, employment news bulletins, get announcement made on radio and
television and consider all eligible candidates whose names may be forwarded by
the concerned employment exchange and/or who may apply pursuant to the
advertisement published in the newspapers or announcements made on radio/television.
17.
Notwithstanding
the basic mandate of Article 16 that there shall be equality of opportunity for
all citizens in matters relating to employment for appointment to any office
under the State, the spoil system which prevailed in America in 17th and 18th
centuries has spread its tentacles in various segments of public employment
apparatus and a huge illegal employment market has developed in the country
adversely affecting the legal and constitutional rights of lakhs of meritorious
members of younger generation of the country who are forced to seek
intervention of the court and wait for justice for years together.
SPOIL SYSTEM - A
BIRD'S EYE VIEW:
18.
In
17th and 18th centuries a peculiar system of employment prevailed in America.
Under that system, leaders of the political party which came to power considered
it to be their prerogative to appoint their faithful followers to public
offices and remove those who did not support the party. The system was
developed in New York and Pennsylvania more than elsewhere, largely because of
the existence in those States of a large body of apathetic non-English voters.
In New York, the ill- devised council of appointment had much to do with the
growth of this system. In the Federal Government, Jefferson implemented this
system to a large extent. The prescription of a four year term for various
offices considerably increased appointment of political faithfuls to public
offices and positions. The politicians who surrounded Jackson brought this
system to its full development as an engine of party warfare. Since then it
became a regular feature in every administration. The phrase `spoil system' was
derived from the statement of Senator W L Marcy of New York, in a speech in the
Senate in 1832. Speaking of the New York politicians, he said: `They see
nothing wrong in the rule that to the victor belong the spoils of the enemy'.
By 1840, the spoil system was widely used in Local, State and Federal
governments. As a result of this, America fell far behind other nations in
civil service standards of ability and rectitude. When William Henry Harrison
became President in 1841, the practice of appointing political followers
reached its pinnacle. Between 30,000 and 40,000 office-seekers converged on the
capital to scramble for 23,700 jobs which then comprised the federal service.
Numerous persons hired through the spoil system were untrained for their work
and indifferent to it. In the early days, government work was simple. However,
as government grew, a serious need for qualified workers developed. After Civil
War, pressure started building up for reforms in recruitment to civil services.
The gross scandals of President Ulysses S. Grant's administration lent credence
to the efforts of reformers George W. Curtis, Dorman B. Eaton and Carl Schurz.
In 1871, Congress authorized the President to make regulations for appointment
to public services and to constitute Civil Service Commission for that purpose.
However, this merit system ended in 1875 because the Congress failed to provide
funds for the same. Nevertheless, the experiment proved the merit system to be
both functional and supportive. President Rutherford B. Hayes was enamored of
reform and began to use competitive examinations as a basis for appointments.
In 1881, a spurned office-seeker shot and killed President James A. Garfield.
His death provoked further public outcry for civil service reform and paved way
for passage of a bill introduced by Sen. George H. Pendleton of Ohio. His bill
became the Civil Service Act of 1883 and re-established the Civil Service
Commission. The Act rendered it unlawful to fill various federal offices by the
spoil system. Since then, much has been done to avoid the evils of the system.
Federal civil service legislation has been greatly expanded. Many
municipalities and states have made training and experience as a condition
precedent for appointment to public offices. In the territories of India ruled
by Britishers also a large chunk of jobs went to the faithfuls of Britishers
who were considered fit for serving British interest.
19.
With
a view to insulate the public employment apparatus in independent India from
the virus of spoil system, the framers of the Constitution not only made equal
opportunity in the matter of public employment as an integral part of the
fundamental rights guaranteed to every citizen but also enacted a separate
part, i.e., Part XIV with the title "Services under the Union and the
States". Article 309 which finds place in Chapter I of this part envisages
enactment of laws by the Parliament and the State Legislatures for regulating
the recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or of any State.
Proviso to this Article empowers the President or such person as he may direct
in the case of services and posts in connection with the affairs of the Union
and the Governor of a State or such person as he may direct in the case of
services and posts and in connection with the affairs of State, to make rules
regulating the recruitment, and the conditions of service of persons appointed,
to such services and posts till the enactment of law by the appropriate
legislature. Article 311 which also finds place in the same chapter gives
protection to the holders of civil posts against dismissal, removal or
reduction in rank by an authority subordinate to the one by which they are
appointed. This Article also provides that an order of dismissal, removal or
reduction in rank can be passed only after holding an inquiry and giving
reasonable opportunity of hearing to the affected person. The provisions
contained in Chapter II of Part XIV relate to Public Service Commissions.
Article 315 mandates that there shall be a Public Service Commission for the Union
and a Public Service Commission for each State. Article 320(1) casts a duty on
the Union and the State Public Service Commissions to conduct examinations for
appointments to the services of the Union and the State respectively. Clause 3
of Article 320 makes consultation with Union Public Service Commission, or the
State Public Service Commission, as the case may be mandatory on all matters
relating to methods of recruitment to civil services and for civil posts, on
the principles to be followed in making appointments to civil services and
posts and in making promotions and transfers from one service to another and on
the suitability of candidates for such appointments, promotions or transfers,
on all disciplinary matters affecting a person serving under the Government of
India or the Government of a State in a civil capacity, including memorials or
petitions relating to such matters, on any claim by or in respect of a person
who is serving or has served under the Government of India or the Government of
a State or under the Crown in India or under the Government of an Indian State,
in a civil capacity, that any costs incurred by him in defending legal
proceedings instituted against him in respect of acts done or purporting to be
done in the execution of his duty should be paid out of the Consolidated Fund
of India, or, as the case may be, out of the Consolidated Fund of the State, on
any claim for the award of a pension in respect of injuries sustained by a
person while serving under the Government of India or the Government of a State
or under the Crown in India or under the Government of an Indian State, in a
civil capacity, and any question as to the amount of any such award. This
clause also casts a duty on the Public Service Commissions to advise on any
matter referred to them by the President or the Governor.
20.
However,
the hope and expectation of the framers of the Constitution that after
independence every citizen will get equal opportunity in the matter of
employment or appointment to any office under the State and members of civil
services would remain committed to the Constitution and honestly serve the
people of this country have been belied by what has actually happened in last
four decades.
The Public Service
Commissions which have been given the status of Constitutional Authorities and
which are supposed to be totally independent and impartial while discharging
their function in terms of Article 320 have become victims of spoil system.
In the beginning,
people with the distinction in different fields of administration and social
life were appointed as Chairman and members of the Public Service Commissions
but with the passage of time appointment to these high offices became personal
prerogatives of the political head of the Government and men with questionable
background have been appointed to these coveted positions. Such appointees
have, instead of making selections for appointment to higher echelons of
services on merit, indulged in exhibition of faithfulness to their mentors
totally unmindful of their Constitutional responsibility. This is one of
several reasons why most meritorious in the academics opt for private
employment and ventures. The scenario is worst when it comes to appointment to
lower strata of the civil services.
Those who have been
bestowed with the power to make appointment on Class III and Class IV posts
have by and large misused and abused the same by violating relevant rules and
instructions and have indulged in favouritism and nepotism with impunity
resulting in total negation of the equality clause enshrined in Article 16 of
the Constitution. Thousands of cases have been filed in the Courts by aggrieved
persons with the complaints that appointment to Class III and Class IV posts
have been made without issuing any advertisement or sending requisition to the
employment exchange as per the requirement of the 1959 Act and those who have
links with the party in power or political leaders or who could pull strings in
the power corridors get the cake of employment. Cases have also been filed with
the complaints that recruitment to the higher strata of civil services made by
the Public Service Commissions have been affected by the virus of spoil system
in different dimensions and selections have been made for considerations other
than merit.
21.
Unfortunately,
some orders passed by the Courts have also contributed to the spread of spoil
system in this country. The judgments of 1980s and early 1990s show that this
Court gave expanded meaning to the equality clause enshrined in Articles 14 and
16 and issued directions for treating temporary/ad hoc/daily wage employees at
par with regular employees in the matter of payment of salaries etc.
The schemes framed by
the Governments and public bodies for regularization of illegally appointed
temporary/ad hoc/daily wage/casual employees got approval of the Courts. In
some cases, the Courts also directed the State and its
instrumentalities/agencies to frame schemes for regularization of the services
of such employees. In State of Haryana v. Piara Singh [(1992) 4 SCC 118], this
Court reiterated that appointment to the public posts should ordinarily be made
by regular recruitment through the prescribed agency and that even where ad hoc
or temporary employment is necessitated on account of the exigencies of
administration, the candidate should be drawn from the employment exchange and
that if no candidate is available or sponsored by the employment exchange, some
method consistent with the requirements of Article 14 of the Constitution
should be followed by publishing notice in appropriate manner calling for
applications and all those who apply in response thereto should be considered
fairly, but proceeded to observe that if an ad hoc or temporary employee is
continued for a fairly long spell, the authorities are duty bound to consider
his case for regularization subject to his fulfilling the conditions of
eligibility and the requirement of satisfactory service. The propositions laid
down in Piara Singh's case (supra) were followed by almost all High Courts for
directing the concerned State Governments and public authorities to regularize
the services of ad hoc/temporary/daily wage employees only on the ground that
they have continued for a particular length of time. In some cases, the schemes
framed for regularization of the services of the backdoor entrants were also
approved. As a result of this, beneficiaries of spoil system and corruption
garnered substantial share of Class III and Class IV posts and thereby caused
irreparable damage to the service structure at the lower levels. Those
appointed by backdoor methods or as a result of favoritism, nepotism or
corruption do not show any commitment to their duty as public servant.
Not only this,
majority of them are found to be totally incompetent or inefficient.
22.
In
Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi
and others [(1992) 4 SCC 99], the Court took cognizance of the illegal
employment market which has developed in the country and observed:
"Apart from the
fact that the petitioners cannot be directed to be regularised for the reasons
given above, we may take note of the pernicious consequences to which the
direction for regularisation of workmen on the only ground that they have put
in work for 240 or more days, has been leading. Although there is an Employment
Exchange Act which requires recruitment on the basis of registration in the
Employment Exchange, it has become a common practice to ignore the Employment
Exchange and the persons registered in the Employment Exchanges, and to employ
and get employed directly those who are either not registered with the
Employment Exchange or who though registered are lower in the long waiting list
in the Employment Register. The courts can take judicial notice of the fact
that such employment is sought and given directly for various illegal
considerations including money.
The employment is
given first for temporary periods with technical breaks to circumvent the
relevant rules, and is continued for 240 or more days with a view to give the
benefit of regularization knowing the judicial trend that those who have
completed 240 or more days are directed to be automatically regularized. A good
deal of illegal employment market has developed resulting in a new source of corruption
and frustration of those who are waiting at the Employment Exchanges for years.
Not all those who
gain such backdoor entry in the employment are in need of the particular jobs.
Though already employed elsewhere, they join the jobs for better and secured
prospects.
That is why most of
the cases which come to the courts are of employment in government departments,
public undertakings or agencies. Ultimately it is the people who bear the heavy
burden of the surplus labour. The other equally injurious effect of
indiscriminate regularization has been that many of the agencies have stopped
undertaking casual or temporary works though they are urgent and essential for
fear that if those who are employed on such works are required to be continued
for 240 or more days they have to be absorbed as regular employees although the
works are time-bound and there is no need of the workmen beyond the completion
of the works undertaken. The public interests are thus jeopardised on both
counts."
(emphasis added)
23.
In
State of U.P. and others v. U.P. State Law Officers Association and others
[(1994) 2 SCC 204], this Court examined the correctness of an order passed by
Allahabad High Court quashing the termination of the services of 26 law
officers and appointment of new law officers. After noticing the provisions of
Legal Remembrancer's Manual which regulate appointment of Government counsel in
the State of U.P. and the manner in which the respondents were appointed, this
Court reversed the order of the High Court and observed:
"It would be
evident from Chapter V of the said Manual that to appoint the Chief Standing
Counsel, the Standing Counsel and the Government Advocate, Additional
Government Advocate, Deputy Government Advocate and Assistant Government
Advocate, the State Government is under no obligation to consult even its
Advocate-General much less the Chief Justice or any of the judges of the High
Court or to take into consideration, the views of any committee that
"may" be constituted for the purpose. The State Government has a
discretion. It may or may not ascertain the views of any of them while making
the said appointments. Even where it chooses to consult them, their views are
not binding on it.
The appointments may,
therefore, be made on considerations other than merit and there exists no
provision to prevent such appointments. The method of appointment is indeed not
calculated to ensure that the meritorious alone will always be appointed or
that the appointments made will not be on considerations other than merit. In
the absence of guidelines, the appointments may be made purely on personal or
political considerations, and be arbitrary. This being so those who come to be
appointed by such arbitrary procedure can hardly complain if the termination of
their appointment is equally arbitrary. Those who come by the back door have to
go by the same door. This is more so when the order of appointment itself
stipulates that the appointment is terminable at any time without assigning any
reason. Such appointments are made, accepted and understood by both sides to be
purely professional engagements till they last. The fact that they are made by
public bodies cannot vest them with additional sanctity. Every appointment made
to a public office, howsoever made, is not necessarily vested with public
sanctity.
There is, therefore,
no public interest involved in saving all appointments irrespective of their
mode. From the inception some engagements and contracts may be the product of
the operation of the spoils system. There need be no legal anxiety to save
them."
[emphasis added]
24.
Notwithstanding
the critical observations made in Delhi Development Horticulture Employees
Union vs. Delhi Administration, Delhi and others (supra) and State of U.P. and
others v. U.P. State Law Officers Association and others (supra), illegal
employment market continued to grow in the country and those entrusted with the
power of making appointment and those who could pull strings in the corridors
of power manipulated the system to ensure that their favourites get employment
in complete and contemptuous disregard of the equality clause enshrined in
Article 16 of the Constitution and Section 4 of the 1959 Act. However, the
Courts gradually realized that unwarranted sympathy shown to the progenies of
spoil system has eaten into the vitals of service structure of the State and
public bodies and this is the reason why relief of reinstatement and/or
regularization of service has been denied to illegal appointees/backdoor
entrants in large number of cases - Director, Institute of Management
Development, U.P. v. Pushpa Srivastava [(1992) 4 SCC 33], Dr. M.A. Haque and
others v. Union of India and others [(1993) 2 SCC 213], J & K Public Service
Commission and others v. Dr. Narinder Mohan and others [(1994) 2 SCC 630], Dr.
Arundhati Ajit Pargaonkar v. State of Maharashtra and others [1994 Suppl.
(3) SCC 380], Union
of India and others v. Kishan Gopal Vyas [(1996) 7 SCC 134], Union of India v.
Moti Lal [(1996) 7 SCC 481], Hindustan Shipyard Ltd. and others v. Dr. P.
Sambasiva Rao and others [(1996) 7 SCC 499], State of H.P. v. Suresh Kumar
Verma and another [(1996) 7 SCC 562], Dr. Surinder Singh Jamwal and another v. State
of J&K and others [(1996) 9 SCC 619], E. Ramakrishnan and others v. State
of Kerala and others [(1996) 10 SCC 565], Union of India and others vs.
Bishambar Dutt [1996 (11) SCC 341], Union of India and others v. Mahender Singh
and others [1997 (1) SCC 245], P. Ravindran and others v. Union Territory of
Pondicherry and others [1997 (1) SCC 350], Ashwani Kumar and others v. State of
Bihar and others [1997 (2) SCC 1], Santosh Kumar Verma and others v. State of
Bihar and others [(1997) 2 SCC 713], State of U.P. and others vs. Ajay Kumar
[(1997) 4 SCC 88], Patna University and another v. Dr. Amita Tiwari [(1997) 7
SCC 198] and Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and others
[(2005) 5 SCC 122].
25.
In
A. Umarani v. Registrar, Coop. Societies and others [(2004) 7 SCC 112], a
three-Judge Bench held that when appointments were made in contravention of
mandatory provisions of the Act and statutory rules framed thereunder and by
ignoring essential qualifications, the appointments would be illegal and cannot
be regularised by the State and that the State cannot invoke its power under
Article 162 of the Constitution to regularise such appointments. The Court
further held that regularisation is not and cannot be a mode of recruitment by
any State within the meaning of Article 12 of the Constitution or any body or
authority governed by a statutory Act or the rules framed thereunder and the
fact that some persons had been working for a long time would not mean that
they had acquired a right for regularisation.
26.
In
Secretary, State of Karnataka vs. Uma Devi [2006 (4) SCC 1], the Constitution
Bench considered different facets of the issue relating to regularization of
services of ad hoc/temporary/daily wage employees and unequivocally ruled that
such appointees are not entitled to claim regularization of service as of
right. After taking cognizance of large scale irregularities committed in
appointment at the lower rungs of the services and noticing several earlier
decisions, the Constitution Bench observed:
"The Union, the
States, their departments and instrumentalities have resorted to irregular appointments,
especially in the lower rungs of the service, without reference to the duty to
ensure a proper appointment procedure through the Public Service Commissions or
otherwise as per the rules adopted and to permit these irregular appointees or
those appointed on contract or on daily wages, to continue year after year,
thus, keeping out those who are qualified to apply for the post concerned and
depriving them of an opportunity to compete for the post. It has also led to
persons who get employed, without the following of a regular procedure or even
through the backdoor or on daily wages, approaching the courts, seeking
directions to make them permanent in their posts and to prevent regular
recruitment to the posts concerned. The courts have not always kept the legal
aspects in mind and have occasionally even stayed the regular process of
employment being set in motion and in some cases, even directed that these
illegal, irregular or improper entrants be absorbed into service. A class of
employment which can only be called "litigious employment", has risen
like a phoenix seriously impairing the constitutional scheme. Such orders are
passed apparently in exercise of the wide powers under Article 226 of the
Constitution.
Whether the wide
powers under Article 226 of the Constitution are intended to be used for a
purpose certain to defeat the concept of social justice and equal opportunity
for all, subject to affirmative action in the matter of public employment as
recognised by our Constitution, has to be seriously pondered over.
It is time that the
courts desist from issuing orders preventing regular selection or recruitment
at the instance of such persons and from issuing directions for continuance of
those who have not secured regular appointments as per procedure established.
The passing of orders for continuance tends to defeat the very constitutional
scheme of public employment. It has to be emphasised that this is not the role
envisaged for the High Courts in the scheme of things and their wide powers
under Article 226 of the Constitution are not intended to be used for the
purpose of perpetuating illegalities, irregularities or improprieties or for
scuttling the whole scheme of public employment. Its role as the sentinel and
as the guardian of equal rights protection should not be forgotten."
"This Court has
also on occasions issued directions which could not be said to be consistent
with the constitutional scheme of public employment. Such directions are issued
presumably on the basis of equitable considerations or individualisation of
justice.
The question arises,
equity to whom? Equity for the handful of people who have approached the court
with a claim, or equity for the teeming millions of this country seeking
employment and seeking a fair opportunity for competing for employment? When
one side of the coin is considered, the other side of the coin has also to be
considered and the way open to any court of law or justice, is to adhere to the
law as laid down by the Constitution and not to make directions, which at
times, even if do not run counter to the constitutional scheme, certainly tend
to water down the constitutional requirements. It is this conflict that is
reflected in these cases referred to the Constitution Bench."
While repelling the argument
based on equity, the Constitution Bench observed:
".....But the
fact that such engagements are resorted to, cannot be used to defeat the very
scheme of public employment. Nor can a court say that the Union or the State
Governments do not have the right to engage persons in various capacities for a
duration or until the work in a particular project is completed. Once this
right of the Government is recognised and the mandate of the constitutional
requirement for public employment is respected, there cannot be much difficulty
in coming to the conclusion that it is ordinarily not proper for the Courts
whether acting under Article 226 of the Constitution or under Article 32 of the
Constitution, to direct absorption in permanent employment of those who have
been engaged without following a due process of selection as envisaged by the
constitutional scheme.
What is sought to be
pitted against this approach, is the so-called equity arising out of giving of
temporary employment or engagement on daily wages and the continuance of such
persons in the engaged work for a certain length of time. Such considerations
can have only a limited role to play, when every qualified citizen has a right
to apply for appointment, the adoption of the concept of rule of law and the
scheme of the Constitution for appointment to posts. It cannot also be
forgotten that it is not the role of the courts to ignore, encourage or approve
appointments made or engagements given outside the constitutional scheme. In
effect, orders based on such sentiments or approach would result in
perpetuating illegalities and in the jettisoning of the scheme of public
employment adopted by us while adopting the Constitution.
The approving of such
acts also results in depriving many of their opportunity to compete for public
employment. We have, therefore, to consider the question objectively and based
on the constitutional and statutory provisions."
[emphasis added] The
Constitution Bench then considered whether in exercise of power under Article
226 of the Constitution, the High Court could entertain claim for
regularization and/or continuance in service made by those appointed without
following the procedure prescribed in the rules or who are beneficiaries of
illegal employment market and held:
"Thus, it is
clear that adherence to the rule of equality in public employment is a basic
feature of our Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an end at the end
of the contract, if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is discontinued. Similarly,
a temporary employee could not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of selection as
envisaged by the relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose period of employment
has come to an end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right.
The High Courts
acting under Article 226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent continuance unless the
recruitment itself was made regularly and in terms of the constitutional
scheme. Merely because an employee had continued under cover of an order of the
court, which we have described as "litigious employment" in the earlier
part of the judgment, he would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such cases, the High Court may not
be justified in issuing interim directions, since, after all, if ultimately the
employee approaching it is found entitled to relief, it may be possible for it
to mould the relief in such a manner that ultimately no prejudice will be
caused to him, whereas an interim direction to continue his employment would
hold up the regular procedure for selection or impose on the State the burden
of paying an employee who is really not required. The courts must be careful in
ensuring that they do not interfere unduly with the economic arrangement of its
affairs by the State or its instrumentalities or lend themselves the
instruments to facilitate the bypassing of the constitutional and statutory
mandates.
It is contended that
the State action in not regularising the employees was not fair within the
framework of the rule of law.
The rule of law
compels the State to make appointments as envisaged by the Constitution and in
the manner we have indicated earlier. In most of these cases, no doubt, the
employees had worked for some length of time but this has also been brought
about by the pendency of proceedings in tribunals and courts initiated at the
instance of the employees. Moreover, accepting an argument of this nature would
mean that the State would be permitted to perpetuate an illegality in the
matter of public employment and that would be a negation of the constitutional
scheme adopted by us, the people of India. It is therefore not possible to
accept the argument that there must be a direction to make permanent all the
persons employed on daily wages. When the court is approached for relief by way
of a writ, the court has necessarily to ask itself whether the person before it
had any legal right to be enforced. Considered in the light of the very clear
constitutional scheme, it cannot be said that the employees have been able to
establish a legal right to be made permanent even though they have never been
appointed in terms of the relevant rules or in adherence of Articles 14 and 16
of the Constitution.
The argument that the
right to life protected by Article 21 of the Constitution would include the
right to employment cannot also be accepted at this juncture. The law is
dynamic and our Constitution is a living document. May be at some future point
of time, the right to employment can also be brought in under the concept of
right to life or even included as a fundamental right.
The new statute is
perhaps a beginning. As things now stand, the acceptance of such a plea at the
instance of the employees before us would lead to the consequence of depriving
a large number of other aspirants of an opportunity to compete for the post or
employment. Their right to employment, if it is a part of right to life, would
stand denuded by the preferring of those who have got in casually or those who
have come through the backdoor. The obligation cast on the State under Article
39(a) of the Constitution is to ensure that all citizens equally have the right
to adequate means of livelihood. It will be more consistent with that policy if
the courts recognise that an appointment to a post in government service or in
the service of its instrumentalities, can only be by way of a proper selection
in the manner recognised by the relevant legislation in the context of the
relevant provisions of the Constitution. In the name of individualising
justice, it is also not possible to shut our eyes to the constitutional scheme
and the right of the numerous as against the few who are before the court. The
directive principles of State policy have also to be reconciled with the rights
available to the citizen under Part III of the Constitution and the obligation
of the State to one and all and not to a particular group of citizens. We,
therefore, overrule the argument based on Article 21 of the Constitution."
27.
In
the light of above, we shall now consider whether the High Court was justified
in directing reinstatement of the respondents with consequential benefits.
In the writ petition
filed by them, the respondents herein made a bald assertion that they were
appointed by the competent authority after following the prescribed procedure
and pleaded that their services could not have been terminated in the garb of
implementing the policy contained in letter dated 16.4.1996 overlooking the
fact that they had been appointed prior to the cut off date, i.e., 28.10.1991
and the fact that they had continuously worked for almost 10 years. On behalf
of the appellants herein, it was submitted that the writ petitioners should not
be granted any relief because their initial appointments were per se illegal
inasmuch as the concerned Regional Director had neither advertised the posts
nor any requisition was sent to the employment exchange and there was no
consideration of the competing claims of eligible persons.
28.
In
view of the contradictory assertions made by the parties on the issue of
legality of the respondents' initial appointment, the minimum which the learned
Single Judge should have done was to call upon the respondents to produce
copies of the advertisement issued by the competent authority and/or
requisition sent to the employment exchange and letters of interview, if any,
issued to them to prove that they were appointed by following a fair procedure
and after considering the claims of all eligible persons. However, without
making any endeavour to find out whether the appointments of the respondents
were made after following some procedure consistent with the doctrine of
equality, the learned Single Judge quashed the termination of their services
simply by relying upon the order passed in another case and by observing that
the writ petitioners (respondents herein) had been appointed before the cut off
date i.e. 28.10.1991 specified in letter dated 16.4.1996 and they had worked
for almost 10 years.
29.
In
the Letters Patent Appeal filed by them, the appellants reiterated that the
respondents had been appointed without following any procedure and without any
selection. They also contended that even though vacant posts were not
available, the then Regional Director, Gaya made large number of illegal
appointments and this fact was established in the enquiry got conducted by the
department. However, the Division Bench did not deal with the issues raised in
the appeal and dismissed the same by making reference to the orders passed in
LPA No.325/2000, Civil Review No.279/2000 and LPA No.47/2005 and observing that
taking different view in the case of the respondents could lead to an anomalous
position inasmuch as some persons would get back into service on the strength
of the court's order while others will be thrown out.
30.
At
the hearing of this appeal, we asked the learned senior counsel appearing for
the respondents to show that before appointing his clients on ad hoc basis, the
then Regional Director, Gaya had issued an advertisement and/or sent
requisition to the employment exchange and made selection after considering
competing claims of the eligible candidates but he could not draw our attention
to any document from which it could be inferred that the respondents were
appointed after advertising the posts or by adopting some other method which
could enable other eligible persons to at least apply for being considered for
appointment. He, however, submitted that issue relating to legality of the
initial appointments of the respondents has become purely academic and this
Court need not go into the same because their services had been regularised by
the competent authority in 1992.
31.
In
our opinion, there is no merit in the submission of the learned senior counsel.
If the initial appointments of the respondents are found to be illegal per se,
the direction given by the High Court for their reinstatement with
consequential benefits cannot be approved by relying upon the so-called
regularization of their services. Had the respondents been appointed by the
competent authority after issuing an advertisement or sending requisition to
the employment exchange so as to enable the latter to sponsor the names of
eligible persons then they would have certainly produced the relevant documents
before the High Court or at least before this Court. However, the fact of the
matter is that none of the documents which could give a semblance of legitimacy
to the appointments of the respondents was produced before the High Court and
none has been produced before this Court. The report of enquiry held against
Dr. Darogi Razak, the then Regional Director, Gaya (a copy of the report has
been placed before this Court in the form of additional document) bears ample
testimony of manipulations made by the officer in making appointment on Class
III and Class IV posts. So much so, with a view to remove every trace of the
illegality committed by him, Dr. Darogi Razak ensured disappearance of all the
papers relating to appointment from his office. A reading of the enquiry report
shows that in all the following five charges were leveled against Dr. Darogi
Razak:
"Charge No.1:
You while working as Regional Director, Animal Husbandry, Gaya had made
irregular appointments of 61 persons on 23 Class-3 posts and 61 Class-4 posts.
As such, the State Funds were misused/wasted on salary, allowances, etc. of the
personnel appointed irregularly.
Charge No.2: You
while working as Regional Director, Animal Husbandry, Gaya, made appointments
on Sate Level posts (such as Milk Recorder (Dugadh Abhilekhak), Poultry
Attendant (Kukkoot Sahayak), Statistics Teller (Sankhiyaki Ganak), Progress
Assistant (Pragati Sahayak, etc.) whereas Regional Directors had no power to
make such appointments. Director, Animal Husbandy is only competent to make
appointments to such posts.
Charge No.3: You
adopted the practice of appointment of four or less than four persons at one go
for which it is not necessary to give advertisement in the newspapers, but as
per Roster, requisition to call for names from Employment Exchange is
mandatory. However, you have not complied with this rule.
Charge No.4: You also
appointed persons in excess of sanctioned strength.
Charge No.5: The
relevant records regarding appointments are not available in the office. In
this connection, this fact has come to notice that these records have been
removed/misplaced at your level."
The Officer who
conducted the enquiry considered the documents produced by the departmental
representative and the charged officer, arguments advanced by them, analyzed
the entire evidence and concluded that charge No. 1 is partly proved, charges
No. 2 and 3 are fully proved, charge No. 4 is not proved and charge No. 5 is
partly proved. The analysis of charges No. 1 to 3 and charge No. 5 made by the
Inquiry Officer is worth noticing. The same reads as under:
"Charges No. 1
to 3:- In the analyses of three charges under consideration, firstly it was seen
that how much proof has been made available by the department regarding
appointments made by the charged officer. As has been shown in detail under
heading `evidence' hereinabove, number of appointment letters issued by the
charged officers comes near around 54 and it may vary by two three less or
more. Practical problems were faced in working out exact number of appointment
letters because many appointment letters were not readable to such extent that
no clear conclusion could be arrived at as to whether this is second copy of
some other appointment letter or it contain any other order.
These appointment
letters were casually perused. Some important facts emerged from such perusal.
The details of appointment letters issued with No.M.Camp were found as under:
- S. Letter No. Date
Name of Category No. person appointed
1. 14/M. Camp, 9.5.89
Raj Kumar Class-4 Nabada Rajak
2. 12/M. Camp, 9.5.89
Ashok Kumar Class-4 Nabada Rajak
3. 15/M. Camp, 9.5.89
Illeg. Class-4 Nabada
4. 21/M. Camp, 3.5.90
Sunil Prasad Class-4 Nabada
5. 16/M. Camp,
19.3.90 Kailash Rajak Class-4 Nabada
6. 95/Camp, 26.5.90
Onkar Kumar Class-4 Jahanabad Singh
7. 266/Camp, 17.2.90
Arun Kumar Class-4 Aurangabad Singh The following appointment letters have been
issued with Issue No."Con.", which is normally used for confidential
correspondence, and use of the same in normal course in the office is not
desired in the interest of work. Using such issue No. for appointment letter
has practically no justification.
1 2 3 4 5
1. 3/Con. 30.4.91 Raj
Kishore Gupta Class-4
2. 5/Con. 10.6.91
Madhuri Ram Class-4
3. 26/Con. 27.10.91
Shyam Pyare Singh Class-4
4. 25/Con. 27.10.91
Upender KumarClass-4 Singh Prasannjeet Kumar Singh
5. 22/Con. 27.10.91
Sanjay Kumar Singh Class-4
6. 16/Con. 25.10.91
Satrughan Sah Class-4 Sahender Prasad Singh
7. 15/Con. 24.10.91
Ramji Ravi Das Class-4 Anil Kumar Singh
8. 6/Con. 2.7.91 Raj
Kishore Singh Class-4
9. 8/Con. 19.12.90
Ram Pyare Singh lass-4 C
10. 7/Con. 10.12.90
Ram Bachan Singh Class-4 Pawan Kumar
11. 11/Con. 1.2.89
Ganesh Rajak Class-3
12. 13/Con. 2.2.89
Ajay Prakash Diwakar -- Appointment letter not made available but this
appointment has been referred to in a letter No.28/Con. Dated illeg. August, 89
issued by charged officer.
13. 3/Con. 12.2.92
Vinah Sharma Class-3
14. 18/Con. 26.10.91
Virender Kumar Singh Class-4 Pawan Kumar
15. 8/Con. 25.10.91
Bodh Narain Singh Class-4
16. 8/Con. 11.10.88
Narain Tiwari Class-4
17. 14/Con. 7.4.89
Uma Shankar Sharma Class-4
18. 2/Con. 30.4.91
Leela Kumari Class-3
19. 10/Con. 23.10.91
Vijender Mandal lass-3 C
20. 5/Con. 9.11.90
Ajay Kumar Class-4
21. 11/Con. 23.10.91
Lakhan Lal Mandal Class-3
22. 2/Con. 23.01.92
Pawan Kumar Class-3
23. 9/Con. 2.11.88
Brij Kishore Singh Class-3
24. 20/Con. 31.5.89
Ravinder Sharma Class-4 Following appointment letters were found which have
been issued putting both i.e. "Con." And "Camp":- 1 2 3 4 5
1. 7/Con./Camp-
21.8.90 Raghvendra Narain Class-4 Sadar, Gaya Vijay Kumar Class-4
2. 3/Con./Camp-
3.1.90 Pandey Class-4 Sadar, Gaya Amar Kumar
3. 6/Con./Camp-
3.8.90 Mithlesh KumarClass-4 Suman Sadar,Gaya Ashok Kumar Abhay Class-4
4. 8/Con./Camp-
2.9.90 Mahender Kumar Yadav Class-4 Sadar, Gaya Pankaj Kumar Class-4 In the
following appointment letters, there does not appear any relation between Issue
Nos. and Date, for example, Issue No. like 1,2,3 have been put in ninth and
tenth month of the year:- 1 2 3 4 5
1. 1 18.9.91 Anand
Class-4 Mohan Singh
2. 2 18.9.91 Gaya
Prasad Class-4
3. 3 22.10.91 Sudama
Class-4 Singh The specific feature of all the above seven appointment letters
is that in all these the charged officer has this or that way ordered to one
Clerk of Sadar, Gaya named Shri Avadesh Prasad that issue these from the
Confidential Issue Register of Sub Divisional Animal Husbandry Officer, Sadar,
Gaya. There is strong possibility arises from this that naturally no one was
interested to issue such letters otherwise such a senior officer would have not
faced such a situation of giving such written order to a clerk only for issue
of letters.
The importance of
above letters is more clear on perusal of some of the remaining letters because
as an exception, some letters have also been issued with Nos. as given below:-
1 2 3 4 5
1. 423 Illeg. 1.
Illeg. Class-3
2. Illeg. Class-3
2. 978 4.7.91 Girija
Yadav Class-3
3. 913 Illeg. Jan
Vikas Kumar Class-3 Chaudhary
4. 1616 15.11.91
Mahender Prasad Class-4 Singh
5. 1467 9.10.91
Upender Narain Class-4 Singh
6. 1432 1.10.91 Sunil
Kumar Class-4 Bharat Kumar Singh Class-4
7. 221 28.6.89
Munender Class-4 Kumar Bharti
8. 1365 11.9.91 Megh
Nath Sah Class-4 It remains a matter of surprise that when some letters could
be shown to have been issued from office in a normal routine manner, then what
is the need of issuing other appointment letters in huge numbers by sometime
putting "Confidential", sometime putting "Mukhya (Hq.)" and
sometime putting "Camp" and sometime by both "Camp" and
"Confidential" contradictory and un-matched Nos. No satisfactory
reply to this is found anywhere during the course of hearing.
In some cases, it
also appears to be very unnatural that charged officer was Regional Director
and his headquarter was also Gaya but showing office of Animal Husbandry
Officer of Sadar Sub.
Division, Gaya as
"Camp", letters were got issued from there.
Any need of getting
issued letters using "Camp" is not understandable. When the office of
charged officer was itself in Gaya, and when any letter whatsoever was to be
got issued, there would have been no difficulty for him to get it issued from
his own office itself. Merely for the reason that he is not sitting in Officer
chamber and in fact is present in the officer of Sub Divisional Animal
Husbandry Officer, justification of issue of letter from camp is difficult to
understand.
Regarding letters
issued from "Camp", this is also another issue for consideration that
such letters are normally issued under such circumstances wherein it is
necessary to issue the letter immediately. Any such emergent situation could
not have been in appointment like matters. There is no reason to think that if
charged officer had got the appointment letter issued even after returning to
his office, the work would have suffered immensely.
Nature of letters is
not such that the subject matter could be considered to be fit for issue from
"camp".
It can also be easily
understood with regard to letters issued by putting different Issue Nos. that
for some reasons the charged officer had considered it not proper to allow
those letters pass through many hands in the office, hence separate Serial No.
used for getting those issued. Even on seeing the available Nos. it is clear
that no other particular correspondence used to be done by using this
"Con." Issue Register from which only these appointment letters have
been issued, because Issue Nos. are of very less units/digits. In very few
instances/examples, the No. has come in double digit. A question mark arises on
Year-wise maintenance of such Register - which is natural.
Now this question
also arises that had charged officer had taken all the actions as per rules,
then why such situation cropped up that unnatural Issue Nos. had to be put on
the appointment letters which are generally used for keeping those letters out
of the sight of office. Charged Officer even otherwise has been merely giving
his statement regarding following procedure of appointment that he had done
such and such. During the course of following procedure, many records and
correspondence/files are created/originated such as calling for information of
vacancies, taking decision on the requirement for appointments, preparing
reservation roster and maintenance of the same in the Roster Register,
classification of available appointments as per Roster, notifying the vacancies
to the employment exchange or newspapers, inviting applications, following
procedure for registration of applications, thereafter examination of
applications as per qualifications, holding meetings of Selection Committee,
issue of minutes and issue of appointment letters after completion of work. All
these documents going missing appear to be impossible. By merely saying that he
followed procedure does not become clear proof that he had done so. In fact,
contrary position appears to be more reliable from the statements given by his
successors and officials of his office. There are sufficient grounds to hold
that the charged officer has not followed the procedure in appointment.
Charge No. (5): -
Here position is not such in which any file related to appointment was ever
seen by anyone. No one has made such admission in his statement. The
appointment letters issued by the charged officer himself do not bear any File
No. It is correct for the charged officer to state that it is the duty of the
office and concerned clerk to maintain File Record Register etc.
If charged officer
take shelter of this technical argument, then he shall also be bound to take
this responsibility that he should have seen that other files submitted to him
with other documents related to appointment bear file No. and that at the time
of issuing fair copy of letters, File Nos. are mentioned on the letters issued
from that file. Normally, an officer who depends and rely on such defence is
also supposed to take much more care and vigil.
During the course of
analyses under charge No.1 to 3, many such letters have been referred in which
some unnatural type of Issue Nos. have been given. There are number of such
letters on which Issue No. "Con." has been given. The charged officer
cannot naturally put liability on his office for whatever file maintained for
issue of such letters. This question is altogether different that why letters
were got issued by putting Issue No. "Con." treating the subject like
appointment as confidential.
The argument of
charged officer in defence also does not clear this fact that why many
appointment letters had been issued with Issue Nos."Camp". As charged
officer states - Files were maintained and office is responsible for safe
"custody" of the same, then it is difficult to understand this fact
that how the letters issued with No."Camp" had come in the files
maintained by the office. If came, then how office can be responsible for this.
"Camp" are
also of different types. "Camp" order has been got issued from Gaya
itself by sitting from Sadar Sub Divisional Office and for this purpose some
clerk has also been given written order. Such papers do not have any concern
with maintenance of file. Some "Camp" orders have also been issued
from Nabada- Aurangabad and other places also. Which file could be submitted
before him at those places on which letter had been issued from Nabada or
Aurangabad itself and responsibility of the same was of the office of Regional
Director, Gaya - it is also difficult to understand.
As such, the
explanation of charged officer is totally one sided.
The matter is not
confined to Issue No. only. When the charged officer in his defence claim of
completing all the formalities, then all such actions such as assessing the
vacancies, calling names from employment exchange or giving advertisement,
making list of candidates, following selection process for the same, holding
meeting of committee and preparing minutes and getting it approved are required
to be taken. It is also difficult to accept that all such documents had gone
missing at the same time.
Merely by saying that
safe custody of records was the responsibility of the office is neither
complete in itself but credibility of this statement also suffers in view of
nature of letters issued.
Now question arises is
that whether charged officer had removed the files/records of appointments made
during his tenure or had taken away by him or somehow destroyed these records.
All these three possibilities arise only when such records had been maintained.
The type of appointment letters shown from which the fourth possibility also
arises that no record has at all been maintained anywhere. As such, there is
also no need to remove or take away any document. It is merely a possibility
for which charged officer would have needed cooperation and participation of
other persons to whom employees were being sent after appointment.
It is not possible to
finally decide from the evidences produced in this departmental inquiry that
out of above three or fourth possibilities, which one is correct. One thing is
though clear that charged officer had not left any of the papers related to
appointment in his office and the manner in which he adopted the working system
of appointments, this strong possibility arises that even if documents were
maintained, these were not maintained at office level. In such a case, the
charged officer shall himself be responsible for non-availability of documents,
irrespective of following the method of removing those documents or not
maintaining any documents. As such, this charge is held to be proved to this
extent."
[emphasis added]
32. The so-called
regularization of the services of the respondents on which heavy reliance was
placed by the learned senior counsel appearing on their behalf in the context
of averments contained in paragraph 4 of the counter affidavit filed before
this Court by Shri Prasannjeet Kumar Singh (respondent no.3 herein) is a proof
of nepotism practiced by the officer and deserves to be ignored. For the
reasons best known to them, the respondents have not produced copy of the order
by which their services were regularised. Perhaps none exists. The statement
furnished by counsel for the appellant, which is accompanied by documents
marked `A' and `B', shows that in less than 7 months of the respondents
appointment (except respondent no.1 who is said to have been appointed with
effect from 9.10.1991), Dr. Darogi Razak is said to have written confidential
memorandum bearing no.20 dated 11.5.1992 (Annexure `A') to District Animal
Husbandry Officer, Aurongabad, Gaya that ad hoc appointments made vide
Memorandum No.1467 dated 9.10.1991 are being regularized temporarily by the
local appointments committee constituted on 11.5.1992. What is most amazing to
notice is that the local appointments committee was constituted on 11.5.1992,
the committee met on the same day and regularised the ad hoc appointments and
on that very day the Regional Director sent confidential letter to his
subordinate, i.e., the District Animal Husbandry Officer informing him about
the regularization of ad hoc appointments. No rule or policy has been brought
to our notice which empowers the appointing authority to regularize ad hoc
appointments within a period of less than 7 months. Therefore, we have no
hesitation to hold that the exercise undertaken by Dr. Darogi Razak for showing
that appointments of the respondents were regularized by the local appointments
committee on 11.5.1992 was a farce.
33. In view of the
above discussion, we hold that the initial appointments of the respondents were
made in gross violation of the doctrine of equality enshrined in Articles 14
and 16 and the provisions of the 1959 Act and the learned Single Judge gravely
erred by directing their reinstatement with consequential benefits.
34. The issue which
remains to be considered is whether the Division Bench of the High Court was
justified in refusing to examine legality and legitimacy of the initial
appointments of the respondents only on the ground that the State had not
challenged the dismissal of Letters Patent Appeals filed in other cases. In our
view, the approach adopted by the Division Bench was clearly erroneous. By now
it is settled that the guarantee of equality before law enshrined in Article 14
is a positive concept and it cannot be enforced by a citizen or court in a
negative manner. If an illegality or irregularity has been committed in favour
of any individual or a group of individuals or a wrong order has been passed by
a judicial forum, others cannot invoke the jurisdiction of the higher or
superior Court for repeating or multiplying the same irregularity or illegality
or for passing wrong order - Chandigarh Administration and another v. Jagjit
Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority,
Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway
Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan
Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v.
Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health
Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory,
Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v.
Kameshwar Prasad Singh and another [(2000) 9 SCC 94], Union of India and
another v. International Trading Co. and another [(2003) 5 SCC 437] and
Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others
[(2007) 4 SCC 737] .
35. The facts of
Jagjit Singh's case were that the respondents who had given the highest bid for
338 square yards plot in Sector 31A, Chandigarh defaulted in paying the price
in accordance with the terms and conditions of allotment. After giving him opportunity
of showing cause, the Estate Officer cancelled the lease of the plot. The
appeal and the revision filed by him were dismissed by the Chief Administrator
and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent
applied for refund of the amount deposited by him. His request was accepted and
the entire amount paid by him was refunded. He then filed a petition for review
of the order passed by the Chief Commissioner, which was dismissed.
However, the officer
concerned entertained the second review and directed that the plot be restored
to the respondent. The latter did not avail benefit of this unusual order and
started litigation by filing writ petition in the High Court, which was
dismissed on March 18, 1991. Thereafter, the respondent again approached the
Estate Officer with the request to settle his case in accordance with the
policy of the Government to restore the plots to the defaulters by charging
forfeiture amount of 5%. His request was rejected by the Estate Officer. He
then filed another writ petition before the High Court which was allowed only
on the ground that in another case pertaining to Smt. Prakash Rani,
Administrator had restored the plot even after her writ petition was dismissed
by the High Court. While reversing the order of the High Court, this Court
observed:
"Generally
speaking, the mere fact that the respondent Authority has passed a particular
order in the case of another person similarly situated can never be the ground
for issuing a writ in favour of the petitioner on the plea of discrimination.
The order in favour of the other person might be legal and valid or it might
not be. That has to be investigated first before it can be directed to be
followed in the case of the petitioner. If the order in favour of the other
person is found to be contrary to law or not warranted in the facts and
circumstances of his case, it is obvious that such illegal or unwarranted order
cannot be made the basis of issuing a writ compelling the respondent Authority
to repeat the illegality or to pass another unwarranted order. The
extraordinary and discretionary power of the High Court cannot be exercised for
such a purpose. Merely because the respondent Authority has passed one
illegal/unwarranted order, it does not entitle the High Court to compel the
authority to repeat that illegality over again and again. The
illegal/unwarranted action must be corrected, if it can be done according to
law--indeed, wherever it is possible, the court should direct the appropriate
authority to correct such wrong orders in accordance with law--but even if it
cannot be corrected, it is difficult to see how it can be made a basis for its
repetition. By refusing to direct the respondent Authority to repeat the
illegality, the court is not condoning the earlier illegal act/order nor can
such illegal order constitute the basis for a legitimate complaint of
discrimination. Giving effect to such pleas would be prejudicial to the
interests of law and will do incalculable mischief to public interest. It will be
a negation of law and the rule of law of course, if in case the order in favour
of the other person is found to be a lawful and justified one it can be
followed and a similar relief can be given to the petitioner if it is found
that the petitioners' case is similar to the other persons' case. But then why
examine another person's case in his absence rather than examining the case of
the petitioner who is present before the court and seeking the relief. Is it
not more appropriate and convenient to examine the entitlement of the
petitioner before the court to the relief asked for in the facts and
circumstances of his case than to enquire into the correctness of the order
made or action taken in another person's case, which other person is not before
the case nor is his case. In our considered opinion, such a course--barring
exceptional situations--would neither be advisable nor desirable. In other
words, the High Court cannot ignore the law and the well-accepted norms
governing the writ jurisdiction and say that because in one case a particular
order has been passed or a particular action has been taken, the same must be
repeated irrespective of the fact whether such an order or action is contrary
to law or otherwise. Each case must be decided on its own merits, factual and
legal, in accordance with relevant legal principles." In Secretary, Jaipur
Development Authority, Jaipur v. Daulat Mal Jain (supra) this Court held:
"The illegal
allotment founded upon ultra vires and illegal policy of allotment made to some
other persons wrongly, would not form a legal premise to ensure it to the
respondent or to repeat or perpetuate such illegal order, nor could it be
legalized. In other words, judicial process cannot be abused to perpetuate the
illegalities. Article 14 proceeds on the premise that a citizen has legal and
valid right enforceable at law and persons having similar right and persons
similarly circumstanced, cannot be denied of the benefit thereof. Such person
cannot be discriminated to deny the same benefit. The rational relationship and
legal back-up are the foundations to invoke the doctrine of equality in case of
persons similarly situated. If some persons derived benefit by illegality and
had escaped from the clutches of law, similar persons cannot plead, nor the
Court can countenance that benefit had from infraction of law and must be
allowed to be retained. One illegality cannot be compounded by permitting
similar illegal or illegitimate or ultra vires acts."
In Union of India
[Railway Board] and others v. J.V. Subhaiah and others (supra), a three-Judge
Bench held as under:
"The principle
of equality enshrined under Article 14 of the Constitution, as contended for
the respondents, does not apply since we have already held that the order of
the CAT, Madras Bench is clearly unsustainable in law and illegal which can
never form basis to hold that the other employees are invidiously discriminated
offending Article 14. The employees covered by the order of the Madras Bench
may be dealt with by the Railway Administration appropriately but that could
not form foundation to plead discrimination violating Article 14 of the
Constitution."
In Gursharan Singh v.
New Delhi Municipal Committee (supra), this Court declined to invoke Article 14
of the Constitution for giving relief to the appellant and observed:
"There appears
to be some confusion in respect of the scope of Article 14 of the Constitution
which guarantees equality before law to all citizens. This guarantee of
equality before law is a positive concept and it cannot be enforced by a
citizen or court in a negative manner. To put it in other words, if an
illegality or irregularity has been committed in favour of any individual or a
group of individuals, others cannot invoke the jurisdiction of the High Court
or of this Court, that the same irregularity or illegality be committed by the
State ... so far such petitioners are concerned, on the reasoning that they
have been denied the benefits which have been extended to others although in an
irregular or illegal manner. Such petitioners can question the validity of
orders which are said to have been passed in favour of persons who were not
entitled to the same, but they cannot claim orders which are not sanctioned by
law in their favour on principle of equality before law. Neither Article 14 of
the Constitution conceives within the equality clause this concept nor Article
226 empowers the High Court to enforce such claim of equality before law. If
such claims are enforced, it shall amount to directing to continue and
perpetuate an illegal procedure or an illegal order for extending similar
benefits to others. Before a claim based on equality clause is upheld, it must
be established by the petitioner that his claim being just and legal, has been
denied to him, while it has been extended to others and in this process there
has been a discrimination."
In Faridabad CT. Scan
Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the
earlier decision of a two Judge Bench in Mediwell Hospital & Health Care
(P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and held:
"Article 14
cannot be invoked in cases where wrong orders are issued in favour of others.
Wrong orders cannot be perpetuated with the help of Article 14 on the basis
that such wrong orders were earlier passed in favour of some other persons and
that, therefore, there will be discrimination against others if correct orders
are passed against them. The benefit of the exemption notification, in the
present case, cannot, therefore, be extended to the petitioner on the ground
that such benefit has been wrongly extended to others."
The above principles
were extended to the judgment of the Court in State of Bihar v. Kameshwar
Prasad Singh (supra) wherein this Court held as under:
"The concept of
equality as envisaged under Article 14 of the Constitution is a positive
concept which cannot be enforced in a negative manner. When any authority is
shown to have committed any illegality or irregularity in favour of any
individual or group of individuals, others cannot claim the same illegality or
irregularity on the ground of denial thereof to them. Similarly wrong judgment
passed in favour of one individual does not entitle others to claim similar
benefits."
[emphasis added] In
State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High
Court was not right in issuing a mandamus to the State to allow the petitioner
to withdraw his resignation merely because in another case such a course as
adopted.
Some of the
observations made in that case, which are quite instructive, are extracted
below:
"The doctrine of
discrimination is founded upon existence of an enforceable right. He was
discriminated and denied equality as some similarly situated persons had been
given the same relief.
Article 14 would
apply only when invidious discrimination is meted out to equals and similarly
circumstanced without any rational basis or relationship in that behalf. The
respondent has no right, whatsoever and cannot be given the relief wrongly
given to them, i.e., benefit of withdrawal of resignation. The High Court was
wholly wrong in reaching the conclusion that there was invidious
discrimination. If we cannot allow a wrong to perpetrate, an employee, after
committing misappropriation of money, is dismissed from service and
subsequently that order is withdrawn and he is reinstated into the service. Can
a similarly circumstanced person claim equality under Section 14 for
reinstatement? The answer is obviously `No'. In a converse case, in the first
instance, one may be wrong but the wrong order cannot be the foundation for
claiming equality for enforcement of the same order. As stated earlier, his
right must be founded upon enforceable right to entitle him to the equality
treatment for enforcement thereof. A wrong decision by the Government does not
give a right to enforce the wrong order and claim parity or equality. Two
wrongs can never make a right."
In Union of India v.
International Trading Co. (supra), the Court reiterated that Article 14 does
not comprehend negative equality and observed:
"What remains
now to be considered, is the effect of permission granted to the thirty two
vessels. As highlighted by learned counsel for the appellants, even if it is
accepted that there was any improper permission, that may render such
permissions vulnerable so far as the thirty two vessels are concerned, but it
cannot come to the aid of the respondents. It is not necessary to deal with
that aspect because two wrongs do not make one right.
A party cannot claim
that since something wrong has been done in another case direction should be
given for doing another wrong. It would not be setting a wrong right, but would
be perpetuating another wrong. In such matters there is no discrimination
involved. The concept of equal treatment on the logic of Article 14 of the
Constitution of India (in short "the Constitution") cannot be pressed
into service in such cases. What the concept of equal treatment presupposes is
existence of similar legal foothold. It does not countenance repetition of a
wrong action to bring both wrongs on a par. Even if hypothetically it is
accepted that a wrong has been committed in some other cases by introducing a
concept of negative equality the respondents cannot strengthen their case. They
have to establish strength of their case on some other basis and not by
claiming negative equality."
In Directorate of
Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge
Bench, after making a reference to the judgments in Jagjit Singh's case and
Gursharan Singh's case, observed:
"When a
grievance of discrimination is made, the High Court cannot just examine whether
someone similarly situated has been granted a relief or benefit and then
automatically direct grant of such relief or benefit to the person aggrieved.
The High Court has to first examine whether the petitioner who has approached
the court has established a right, entitling him to the relief sought on the
facts and circumstances of the case. In the context of such examination, the
fact that some others, who are similarly situated, have been granted relief
which the petitioner is seeking, may be of some relevance. But where in law, a
writ petitioner has not established a right or is not entitled to relief, the
fact that a similarly situated person has been illegally granted relief, is not
a ground to direct similar relief to him. That would be enforcing a negative
equality by perpetuation of an illegality which is impermissible in law."
36. In view of the
above stated legal position, the order passed by the Division Bench dismissing
the Letters Patent Appeal cannot be sustained.
37. In the result,
the appeal is allowed, the orders of the learned Single Judge and Division
Bench are set aside and the writ petition filed by the respondents is
dismissed.
......................J.
[MARKANDEY KATJU]
......................J.
[G.S. SINGHVI]
New
Delhi,
March
20, 2009.
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